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EXHIBIT 10-v(i)
AGREEMENT
This Agreement ("Agreement") is made this 14th day of July,
1997, between Bindley Western Industries, Inc., an Indiana corporation ("B-W"),
and Eaton & Xxxxx Real Estate Services, Inc., an Indiana corporation ("E&L"),
for the purchase of real estate and the complete development, design and
construction of College Xxxx Xxxxx Xxxxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxx (the "Project"). The real estate to be sold and on which the Project is
to be constructed (the "Real Estate") consists of a tract of land of
approximately 10.21 acres and is more particularly described in the attached
Exhibit A. B-W and E&L agree as set forth below:
ARTICLE 1
General
1.1 E&L accepts the relationship of trust and confidence
established between it and B-W by this Agreement. E&L agrees (i) to furnish
all developmental, architectural, engineering and construction services
necessary to develop and design the Project and complete the Work in a good and
workmanlike manner, (ii) to furnish efficient business administration and
superintendents, and (iii) to use its best efforts to complete the Project in
the best and soundest way and in the most expeditious and economical manner
consistent with the interests of B-W. E&L will act as general contractor for
the Project.
1.1 Definitions. The Project is the total construction to
be designed and constructed of which the Work is a part. The Work comprises
the completed construction of a commercial office building containing
approximately 180,000 square feet to be designed in accordance with the outline
specifications, renderings and floor plans attached as Exhibit B and includes
(without limitation) all labor necessary to produce such construction and all
materials and equipment incorporated or to be incorporated in such
construction.
ARTICLE 2
Sale of Real Estate
1.1 B-W shall have fifteen (15) days from the date of this
Agreement (the "Due Diligence Period") to conduct any due diligence
investigation that B-W desires with respect to the Real Estate. E&L has
provided B-W with a preliminary ALTA title insurance commitment issued by
Commonwealth Land Title Insurance Company (the "Title Company") as Commitment
No. 97M 15246, dated April 15, 1997 and a minimum standard ALTA survey,
prepared by Xxxx X. Xxxxx, Inc. and dated June 25, 1997 for the Real Estate.
Within ten (10) days of the date of this Agreement, E&L shall provide B-W a
current environmental assessment report relating to the Real Estate, an update
of such report and a letter from the environmental assessment firm authorizing
B-W's reliance on the report, as updated. In addition, E&L shall cooperate
with B-W in any additional due diligence sought by B-W.
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2.1 If B-W shall be dissatisfied with the results of its
due diligence, as determined by B-W in its sole discretion, B-W may terminate
this Agreement by written notice to E&L mailed to E&L on or before the last day
of the Due Diligence Period. In the event of such termination, neither party
shall have any further liability hereunder.
2.1 E&L covenants and warrants as follows:
2.1.1 To the best of E&L's knowledge, the Real Estate
is in compliance with all applicable statutes, orders,
regulations, rules, covenants and restrictions including, but not
limited to, federal, state or local regulations or laws
pertaining to pollution or zoning, and no material capital
expenditures will be required for compliance with any such
regulations or laws currently in force.
2.1.1 To the best of E&L's knowledge, there are not
presently pending or threatened any litigation, action,
investigation, special assessments or condemnation actions
affecting the Real Estate or any part thereof, nor has E&L
received any notice of any of the foregoing being contemplated.
2.1.1 This Agreement and all other documents
delivered or to be delivered by E&L have been or will be duly
authorized and executed and delivered by E&L, and are legal,
valid and binding obligations of E&L, are enforceable in
accordance with their respective terms, and do not violate any
provisions of any agreement to which E&L is a party.
2.1.1 There are no contracts, licenses, commitments,
or undertakings respecting maintenance of the Real Estate or the
performance of services on the Real Estate, or the use of the
Real Estate or any part thereof, except as may be disclosed in
the title commitment delivered to B-W pursuant to Paragraph 2.1.
2.1.1 E&L has not received any notification from any
governmental agency, authority or instrumentality of any pending
or threatened assessments on or against the Real Estate.
2.1.1 To the best of E&L's knowledge, there are no
fuel, chemical or other storage tanks located on the Real Estate.
2.1.1 To the best of E&L's knowledge, the Real
Estate has not been used for the treatment, storage or disposal
of or otherwise contaminated by any toxic, hazardous or special
wastes, substances, materials, constituents, pollutants or
contaminants (as defined by federal, state or local laws,
statutes, ordinances, rules or regulations).
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2.1.1 To the best of E&L's knowledge, no claim,
action, suit, or proceeding relating to the Real Estate or the
transaction contemplated by this Agreement is pending or, to the
best of E&L's knowledge, threatened against E&L or the Real
Estate before any court or other governmental authority or
arbitration tribunal, and there is no outstanding judgment,
order, writ, injunction, decree, or award against or affecting
E&L, to the best of E&L's knowledge, the Real Estate, or the
transaction contemplated by this Agreement.
2.1.1 To the best of E&L's knowledge, no portion of
the Real Estate is a "wetlands" or in a flood plain for purposes
of any applicable law, rule, regulation, or ordinance.
2.1.1 To the best of E&L's knowledge, there are no
parties in possession of any portion of the Real Estate, whether
as lessees, tenants at sufferance, trespassers, or otherwise.
2.1.1 To the best of E&L's knowledge, there are no
changes pending in any applicable laws, ordinances or
restrictions, or any judicial or administrative action, or any
action by adjacent land owners, which would prevent, limit or
impede the use of the Real Estate for the purposes contemplated
by B-W.
To the best of E&L's knowledge shall mean the actual knowledge
of Xxxxxx X. Xxxxx, Xx., Xxxxxxx X. Xxxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxx or Xxxxx
Xxxxx without having undertaken any special investigation for B-W.
2.1 In the event B-W shall not terminate this Agreement as
provided in Paragraph 2.2, E&L shall transfer to B-W the Real Estate at the
time the First Installment of the Lump Sum Price, Two Million Nine Hundred
Twenty Nine Thousand Dollars ($2,929,000), is payable under Article 9. At such
time, E&L shall deliver, or cause to be delivered, the following:
2.1.1 A duly executed special warranty deed conveying
to B-W marketable fee simple title to the Real Estate free and
clear of any and all liens, encumbrances, easements, restrictions,
covenants, except the lien for nondelinquent real estate taxes
and other matters, if any, disclosed in the title commitment to
which B-W has not objected in writing during the Due Diligence
Period.
2.1.1 A duly executed vendor's affidavit in form and
substance satisfactory to B-W and the Title Company.
2.1.1 A duly executed non foreign entity affidavit in
form and substance satisfactory to B-W and the Title Company.
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2.1.1 A certification executed by E&L certifying that
all representations and warranties of E&L set out above are true
and correct at the time of the transfer.
2.1.1 Such corporate resolutions, certificate of good
standing and/or other evidence of authority as B-W and the Title
Company may reasonably request.
2.1.1 The disclosure document required by the Indiana
Responsible Property Transfer Law, if applicable.
2.1.1 An owner's policy of title insurance in the
full amount of the Lump Sum Price and the Tenant Build Out
Allowance, subject only to the exceptions contained in the deed.
2.1.1 A disclosure of sales information form properly
executed by E&L.
2.1 If E&L fails to deliver the items specified in
Paragraph 2.4 above, B-W may terminate this Agreement by written notice to E&L.
In the event of such termination, all amounts previously paid to E&L by B-W
shall be immediately refunded to B-W, and neither party shall have any further
liability hereunder.
2.1 At the time of transfer, possession of the Real Estate
shall be delivered to B-W free and clear of all rights and claims of any other
party to the possession, use or control of the Real Estate, except as set forth
in this Agreement.
ARTICLE 3
E&L's Responsibility
2.1 Responsibilities with respect to design work
3.1.1 For the design work, E&L shall utilize the
services of competent design professional subcontractors
to assure that the Work, as designed, will meet all applicable
laws, ordinances, codes and regulations, the usual design wind
loads, roof loads and other criteria utilized in the locale of
the Project, and B-W's requirements of function and quality.
Any design, engineering, architectural or other professional
service to be performed hereunder which requires personnel
licensed under the laws of the State of Indiana will be performed
by such licensed personnel. Any design, engineering,
architectural or other professional service under this Agreement
shall be provided in conformity with the standards of reasonable
care and skill of the profession for services of the type
provided.
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3.1.1 E&L shall provide for the Project and the
parking lot(s) and roadways serving the Project all architectural
services; landscape architectural services; structural,
mechanical (including heating, ventilating and air conditioning),
electrical, plumbing and civil engineering services; fire and
building code consultant services; and all interior and exterior
design services.
3.1.1 E&L shall prepare, at intervals to permit
construction in accordance with the terms of this Agreement, for
B-W's approval, drawings and specifications setting forth the
requirements for the construction of the Work in customary detail
sufficient to enable subcontractors and suppliers to bid their
respective portions of the Work and workmen of ordinary skill to
construct the Work. E&L warrants that the drawings and
specifications ultimately submitted to B-W for its approval shall
provide a facility which will be fit for the purposes intended,
comply with all applicable laws and codes, and meet B-W's
requirements of function and quality. Upon B-W's approval, each
of the drawings and specifications shall be attached hereto as
Exhibit C and shall be referred to hereinafter as the "Drawings
and Specifications."
3.1.1 E&L shall prepare and submit for B-W's approval
an estimated progress schedule for the Project as soon as the
Agreement is executed. This schedule shall indicate the
estimated amount of the itemized progress of the Project as well
as the dates for the starting and completion of the various
stages of the design and construction. Without prejudice to
Paragraph 6.1, it shall be revised as required by the conditions
of the Work. E&L shall issue to B-W monthly such progress
schedule updated for B-W's review.
3.1.1 E&L shall prepare all documents required for
approvals of governmental authorities having jurisdiction over
the Project.
3.1.1 E&L shall prepare renderings and one model for
B-W's use.
3.1.1 E&L shall document all changes in the Drawings
and Specifications made during the course of the Work and prepare
a complete set of as built drawings at the completion of the Work.
3.1.1 Notwithstanding the foregoing, it is agreed
that design services for build out of the non public usable areas
of the building ("Tenant Build Out") in the building will not be
performed during the building design. Design services for Tenant
Build Out will be provided from time to time at the request of
B-W. However, when performed, such
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services will be provided, to the extent appropriate, in
conformity with the requirements of this Paragraph 3.1 and the
remainder of this Agreement.
3.1 Responsibilities with respect to Construction
3.1.1 Construction of each portion of the Work shall
commence upon B-W's approval of the Drawings and Specifications.
3.1.1 E&L shall provide and pay for all construction
supervision, inspection, labor, materials, tools, construction
equipment, subcontracted items, taxes, fees, insurance and all
other items and services necessary for the execution and
completion of the Project in a good and workmanlike manner and in
accordance with the Drawings and Specifications.
3.1.1 E&L shall pay all sales, use, gross receipts
and other taxes related to the construction of the Project which
have been legally enacted at the time of execution of this
Agreement.
3.1.1 E&L shall at all times keep the Project site
free from the accumulation of waste materials or rubbish
caused by its operations. At the completion of the Work, E&L
shall remove all waste material and rubbish from and around the
Project site as well as all tools, construction equipment,
machinery and surplus materials, including surplus soil.
3.1.1 E&L shall give all notices and comply with all
laws, codes, ordinances, rules, regulations or orders which
govern the proper execution of the Work. E&L shall obtain all
permits and approvals of governmental authorities having
jurisdiction over the Project. E&L shall correct, at its
expense, Work which does not comply with the above mentioned
laws, codes, etc.
3.1.1 E&L shall take necessary precautions for the
safety of all who are providing material or labor for the
completion of the Work, and shall comply with all applicable
provisions of federal, state and municipal safety laws to prevent
accidents or injury to persons on, about or adjacent to the job
site. E&L shall erect and properly maintain, at all times, as
required by the conditions and progress of the Work, necessary
safeguards for the protection of workmen and the public.
3.1.1 E&L shall keep and provide to B-W such full and
detailed accounts, including evidence of payment of all sales,
use, gross receipts and other taxes related to the construction
of the Project, as may be necessary for proper financial
management under this Agreement.
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3.1.1 E&L shall, with due dispatch, prepare and
submit to B-W such data and information as may be requested from
time to time by B-W in connection with the construction of the
Project.
3.1.1 E&L shall provide and pay for all coordination,
supervision, inspection, labor, materials, construction
equipment, tools, subcontract items, transportation, temporary
buildings or facilities, taxes, fees, insurance and other items
of services which are necessary for the execution and completion
of the Work in a good and workmanlike manner and in accordance
with the Drawings and Specifications.
3.1.1 All portions of the Work shall be performed by
subcontractors under subcontracts between E&L and the
subcontractors. E&L shall be responsible for all construction
means, methods, techniques, sequences and procedures, whether the
Work is performed by E&L's own forces or by subcontractors.
3.1.1 All personnel and subcontractors used by E&L in
the performance of the Work shall be qualified by training and
experience to perform their assigned portion of the Work.
3.1.1 E&L shall maintain or cause to be maintained a
competent staff at the Project site as necessary to coordinate,
supervise and direct the progress of the Work. E&L's Project
Manager with overall responsibility for the Work is Xxxxxxx
Xxxxxxx. No change of such Project Manager shall be made without
prior written notice to B-W.
3.1.1 E&L shall prepare or cause to be prepared, as
part of the Work, all shop drawings and other detail drawings not
made as part of the Drawings and Specifications which are
required in the performance of E&L's obligation hereunder.
3.1.1 E&L shall maintain current records of all Change
Orders, Drawings and Specifications, shop drawings, product data,
samples, applicable handbooks, federal, commercial and technical
standards and specifications, maintenance and operating manuals
and instructions, and other contract related documents, including
all revisions. E&L shall provide all representatives of B-W full
access to such records and to the Work during the progress of the
Work so that B W may verify that E&L is fully complying with this
Agreement. At the completion of the Work, E&L shall deliver all
such records to B-W. E&L shall not be required to provide copies
of subcontracts or purchase orders to B-W.
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3.1.1 E&L shall, with B-W's maintenance personnel,
direct the checkout of utilities, operations systems and
equipment for readiness and assist in their initial startup and
testing.
3.1.1 Notwithstanding anything implied or expressed
to the contrary, it is agreed that construction services for
Tenant Build Out shall not necessarily be performed during the
Building Construction. Construction services for Tenant Build
Out will be provided from time to time at the request of B-W.
However, when performed, such services will be provided in
conformity with the requirements of this Paragraph 3.2 and the
remainder of this Agreement, to the extent appropriate.
3.1.1 During the performance of this Agreement, E&L,
on behalf of B-W (a government contractor), agrees that the
applicable provisions of federal law with respect to Utilization
of Small Business Concerns and Small Disadvantaged Business
Concerns shall apply to all subcontractor and supplier bids and
to provide B-W with a fully completed Certification for Small
Business form (Exhibit D) for each such bidder contacted by E&L.
3.1 Royalties and Patents
3.1.1 E&L shall pay all royalties and license fees in
connection with the Project. E&L shall defend all suits or
claims for infringement of any patent rights and shall save B-W,
its agents, employees or anyone else acting for or on behalf of
any of them harmless from loss, damage, liability, costs and
expenses (including attorneys' and paralegals' fees) on account
thereof.
3.1.1 All Drawings and Specifications issued by,
submitted to or approved by B-W for this Project shall be the
property of B-W and shall belong to B-W, provided that such
Drawings and Specifications shall be used only in connection with
the Project. E&L shall indemnify, hold harmless and defend, at
its expense, B-W, its agents, employees and anyone acting for or
on behalf of any of them from all claims, suits or actions of any
nature whatsoever and all loss, damage, liability, costs and
expenses (including attorneys' and paralegals' fees) which arise
out of or are connected with or are alleged to arise out of or be
connected with rights or claims of rights in such Drawings or
Specifications or the use or adoption of any design, drawings or
specifications.
3.1 Warranties and Completion
3.1.1 E&L warrants to B-W that all the materials and
equipment furnished under this Agreement shall be new, unless
otherwise
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specified, and that all Work will be of good quality, free from
improper workmanship and defective materials and in conformance
with this Agreement.
3.1.1 E&L shall secure required certificates of
inspection, testing or approval and deliver them to B-W.
3.1.1 E&L shall collect all written warranties and
equipment operation and maintenance manuals and deliver them to
B-W. All the benefits of the warranties obtained by E&L from its
subcontractors, vendors, etc., shall be passed to B-W.
3.1.1 E&L agrees to correct all Work defective in
material or workmanship or not in conformance with the Drawings
and Specifications discovered within a period of one year from the
Date of Substantial Completion (or within such longer periods of
time as may be prescribed by law or set forth with respect to
specific warranties contained in the Specifications) promptly
after receipt of written notice thereof from B-W. This
obligation shall survive both final payment hereunder and the
termination of this Agreement. B-W shall give such notice
promptly after discovery of the condition. The establishment of
the time period noted in this Paragraph 3.4.4 relates only to the
specific obligation of E&L to correct the Work and has no
relationship to the time within which E&L's obligations under
this Agreement may be enforced, nor to the time within which
proceedings may be commenced to establish E&L's liability with
respect to its obligations other than specifically to correct the
Work.
ARTICLE 4
B-W's Responsibilities
3.1 B-W has designated Xxxxx X. Xxxxx and Xxxxxxx X.
XxXxxxxxx, acting individually, as its representatives for B-W's dealings with
the Program Manager. These representatives of B-W shall be fully acquainted
with the scope and objectives of the Project, and each acting individually
shall have full authority to approve any documents, Project specifications and
change orders. Each of B-W's representatives shall also have full authority to
approve on behalf of B-W the cost of any changes and the progress schedule.
Each of B-W's representatives shall render his decisions on behalf of B-W
promptly and shall furnish information pertaining to the Project upon the
request of E&L.
4.1 B-W shall make full and prompt payments to the Program
Manager as required by this Agreement.
4.1 If B-W becomes aware of any fault or defect in the
Project or nonconformance with the Plans and Specifications, B-W shall give
prompt written notice thereof
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to E&L for correction by E&L, but B-W shall have no duty or responsibility to
inspect the Project or to discover any fault or defect in the Project or
nonconformance with the Plans and Specifications.
ARTICLE 5
Subcontracts
4.1 All portions of the Work that E&L does not perform with
its own forces shall be performed under subcontractors. E&L shall require that
subcontracted Work be performed in accordance with the requirements of this
Agreement.
5.1 A subcontractor is a person or entity who has a direct
contract with E&L to perform any Work. E&L shall be responsible for the
management and acts of the subcontractors in the performance of their Work.
E&L shall also be responsible for the management and acts of any architect,
engineer or other professional hired by E&L.
5.1 E&L shall defend, indemnify and save harmless B-W, its
agents and employees against any and all losses, damages, liabilities, claims,
demands or costs (including attorneys' and paralegals' fees) resulting from any
act arising out of or in any way connected with the acts or failures to act of
any subcontractor or architect, engineer or other professional hired by E&L.
ARTICLE 6
Contract Time Schedule
5.1 Work (excluding Tenant Build Out) to be performed under
this Agreement shall be commenced upon the expiration of the Due Diligence
Period and shall be substantially completed on or before June 30, 1998 (the
"Date of Substantial Completion"). Tenant Build Out of the portion of the
building to be occupied by B-W shall be completed on or before July 15, 1998,
provided that B-W shall provide information necessary to complete such Work in
a timely manner. To the extent practical, E&L agrees to use reasonable efforts
to facilitate completion of the build out of the B-W space by June 30, 1998. A
separate Date of Substantial Completion shall be established for each
requested Tenant Build Out, and Paragraphs 6.2 and 6.3 shall apply to each
Tenant Build Out.
6.1 The Work shall be substantially completed when the
architect for the Project (the "Architect") certifies that it is substantially
complete. Warranties called for by this Agreement shall commence on the Date
of Substantial Completion. The date shall be established by a Certificate of
Substantial Completion signed by the Architect and shall state E&L's
responsibilities for security, maintenance, heat, utilities, damages to the
Work and insurance. This Certificate shall also list the items to be completed
or corrected and fix the time for their completion and correction. Within
fifteen (15) days of the issuance of the Architect's
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certificate, B-W shall inspect the Work and indicate any additional items to
be completed or corrected.
6.1 The Date of Substantial Completion shall be strictly
observed. If E&L is delayed at any time in the progress of the Project by any
act or neglect of B-W or its agents, by Change Orders, or by labor disputes,
fire, unusual delay in transportation, adverse weather conditions not
reasonably anticipated, unavoidable casualties, or similar causes beyond E&L's
control, then the Date of Substantial Completion shall be extended by the
amount of unavoidable delay. In such case, E&L shall apply for an extension of
time specifying the reason therefor within a reasonable time after E&L becomes
aware of such delay.
6.1 E&L recognizes that time is of the essence in this
Agreement and that B-W will suffer damage in the event that Substantial
Completion of the entire Project, less Tenant Build Out, is not achieved by
June 30, 1998. Liquidated damages shall be paid by E&L in the amount of $1,000
per day for each day after July 30, 1998, that the Project, less Tenant Build
Out, is not substantially complete. E&L agrees that the provisions contained
in this paragraph represent the reasonable estimate of E&L and B-W of the fair
compensation for the losses that may be sustained by B-W due to E&L's failure
to achieve Substantial Completion by June 30, 1998. Such sum shall be payable
by E&L on demand. If E&L fails to make such payments, B-W may deduct the
amounts of such payments from payments otherwise payable hereunder to E&L.
6.1 In any emergency affecting the safety of persons or
property, E&L may act, at its discretion, to prevent threatened damage, injury
or loss. Any extension of time claimed by E&L on account of emergency work
shall be determined as provided in this Article.
ARTICLE 7
Cost of the Project
6.1 B-W shall pay E&L in current funds for the performance
of the Work and all other services, duties, obligations and responsibilities of
E&L under this Agreement, subject to additions and deductions by Change Order
as provided herein, Nineteen Million Eight Hundred Fifty Thousand Dollars
($19,850,000), which includes an allowance in the amount of Three Million One
Hundred Eighty Six Thousand Dollars ($3,186,000) for Tenant Build Out and an
allowance of Nine Hundred Sixty Thousand Dollars ($960,000) for tenant leasing
commissions.
7.1 The cost of the Project, less Tenant Build Out and
leasing commissions, shall be Fifteen Million Seven Hundred Four Thousand
Dollars ($15,704,000) and shall be referred to as the Lump Sum Price.
7.1 The cost of Tenant Build Out and leasing commissions
shall not be limited to the allowance amounts in the event that the amounts
payable under this Agreement for Tenant Build Out and leasing commissions
exceed such allowances.
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ARTICLE 8
Changes in the Project
7.1 B-W, without invalidating this Agreement, may order
changes in the Project within the general scope of this Agreement consisting of
additions, deletions or other revisions, the Lump Sum Price being adjusted in
accordance with the terms set forth in this Article. All such changes in the
Project shall be authorized by a written Change Order to E&L signed by B-W's
authorized agent and issued after the execution of this Agreement.
8.1.1 The Lump Sum Price shall be adjusted if a
Change Order causes changes in the quantities or changes in the
Drawings or Specifications which changes affect the Lump Sum
Price.
8.1.1 The increase or decrease in the Lump Sum Price
resulting from the said changes shall be determined by mutual
acceptance of a lump sum properly itemized in such form as E&L
and B-W may prescribe and supported by sufficient substantiating
data to permit B-W's evaluation.
8.1.1 Upon receipt of the Change Order, E&L shall
forthwith comply with the Change Order and proceed with the work
involved so as to maintain the Contract Time Schedule.
8.1.1 No increase to the Lump Sum Price shall be made
except those resulting from Change Orders.
8.1.1 B-W will have authority to order minor changes
in the Work not involving an adjustment in the Lump Sum Price
and not inconsistent with the intent of the Drawings and
Specifications. Such changes may be effected by written order
and shall be binding on B-W and E&L.
ARTICLE 9
Payments to E&L
8.1 B-W shall pay E&L a lump sum payment of Two Hundred
Eighty Thousand Dollars ($280,000.00) on July 29, 1997.
9.1 B-W shall pay E&L progress installments as set forth on
Exhibit E. The amounts of the installments total Fifteen Million Four Hundred
Twenty Four Thousand Dollars ($15,424,000.00).
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9.1 E&L shall provide to B-W a Certificate of Completion
executed by the Architect certifying that the Work to be completed prior to the
making of an installment has been completed in accordance with this Agreement.
9.1 The allowance for Tenant Build Out of Three Million One
Hundred Eighty Six Thousand Dollars ($3,186,000.00) shall be billed to B-W
monthly at a rate equal to E&L's actual cost plus a five percent (5%) fee. On
or before the fifth (5th) day of each month following the commencement of the
construction of the Tenant Build Out and thereafter during the performance of
the Tenant Build Out, E&L shall submit to B-W for its approval an Application
for Payment in form and substance satisfactory to B-W and E&L.
9.1 E&L shall have the exclusive right to offer and
advertise for lease the portions of the Project not to be occupied by B-W for a
period of twelve months after Substantial Completion of the Project. The
allowance for Leasing Commissions of Nine Hundred Sixty Thousand Dollars
($960,000.00) shall be billed to B-W in accordance with E&L's Schedule of
Leasing Commissions attached hereto as Exhibit F. Leasing commissions shall be
earned for services rendered if the Project is leased to a tenant, other than
B-W, procured by E&L, B-W or anyone else. E&L is authorized to cooperate and
share its commission with other licensed real estate brokers, regardless of
whether said brokers represent prospective tenants or act as E&L's subagents.
The total amount of the allowances shall be paid to E&L only if earned.
9.1 Notwithstanding anything in this Article 9 to the
contrary, if any liability. claim or demand is filed with or against B-W, the
Project or the Real Estate by any person claiming that E&L or any material
supplier, subcontractor or other person under it has failed to make payment for
any labor, services, materials, equipment, taxes or other items or obligations
furnished or incurred in connection with the Project, E&L shall have said claim
or demand removed within forty-five (45) days or provide guarantee as
reasonably acceptable to B-W that the claim or demand will be financially
satisfied. If E&L cannot remove or guarantee satisfaction of the claim or
demand within forty-five (45) days, then B-W shall have the right to retain
from any payment then due or to become due an amount which it deems reasonably
sufficient to indemnify and compensate B-W against any such liability, claim,
or demand, including costs, expenses, fees and disbursements incurred in
connection therewith until E&L has removed or guaranteed satisfaction of the
claim. If the amount retained is insufficient therefor, E&L shall be liable
for the difference and pay same to B-W.
9.1 E&L warrants that title to all Work, materials and
equipment covered by any payment will pass to B-W either by incorporation in
the construction or upon receipt of payment by E&L, whichever occurs first,
free and clear of all liens, claims, security interests or encumbrances and
that no Work, materials or equipment covered by any payment will have been
acquired by E&L or by any other person performing Work or furnishing materials
and equipment for the Project subject to an agreement under which an interest
therein or an encumbrance thereon is retained by the seller or otherwise
imposed by E&L or such other person.
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9.1 No progress payment nor any partial or entire use or
occupancy of the Project by B-W shall constitute an acceptance of any Work not
in accordance with this Agreement.
9.1 Final payment of the Lump Sum Price shall be due and
payable as provided in Paragraph 9.2.
9.1 Before issuance of Final Payment, B-W may request
satisfactory evidence that all payrolls, materials, bills, taxes and other
indebtedness connected with the Project have been paid or otherwise satisfied.
9.1 The acceptance of Final Payment shall constitute a
waiver of all claims by E&L except those previously made in writing and
unsettled.
9.1 Except (i) in the event B-W is entitled to withhold
payments to E&L under the Contract, (ii) in the event of a dispute concerning
the stage of the completion of the Project or (iii) in the event B-W has paid
an amount equal to one hundred percent (100%) of the Lump Sum Price (as the
same has been expressly adjusted by Change Order as provided in the Contract
Documents), B-W shall make payment to E&L in the amount of the Application for
payment installment according to the payment schedule contained in Paragraph
9.2, within five (5) days after receipt of such Application.
9.1 E&L shall promptly pay each subcontractor upon receipt
of payment from B-W, out of the amount paid to E&L on account of such
subcontractor's Work, the amount to which such subcontractor is entitled. E&L
shall, by an appropriate agreement with each subcontractor, require each
subcontractor to make payments to their subcontractors in similar manner.
ARTICLE 10
Insurance, Indemnity and Waiver of Subrogation
9.1 Indemnity
10.1.1 E&L shall indemnify and hold harmless B-W, its
agents and employees from and against all claims, damages, losses
and expenses, including but not limited to attorneys' and
paralegals' fees, arising out of or resulting from the
performance of the Work and all other services, duties,
obligations and responsibilities of E&L under this Agreement;
provided that any such claim, damage, loss or expense is caused
in whole or in part by any negligent act or omission of E&L, any
subcontractor (including any architect, engineer or other design
professional employed or retained by E&L), anyone directly or
indirectly employed by any of them or anyone for whose acts any
of them may be liable. Such obligation shall not be construed to
negate, abridge, or
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otherwise reduce any other right or obligation of indemnity which
would otherwise exist as to any party or person described in this
paragraph.
10.1.1 In any and all claims against B-W or any of its
agents or employees by any employee of E&L, any subcontractor,
anyone directly or indirectly employed by any of them or anyone
for whose acts any of them may be liable, the indemnification
obligation under this Article shall not be limited in any way by
any limitation on the amount or type of damages, compensation or
benefits payable by or for E&L or any subcontractor under
worker's or workmen's compensation acts, disability benefit acts
or other employee benefit acts.
10.1.1 The obligations of E&L under this Article shall
extend to the liability of any architect, engineer or other
design professional employed or retained by E&L and such person's
or entity's agents or employees, arising out of (i) the
preparation or approval of maps, drawings, opinions, reports,
surveys, change orders, drawings or specifications, and (ii) the
giving of or the failure to give directions or instructions by
such person or entity, its agents, or employees.
10.1.1 E&L's obligations under this Article shall
survive both final payment and the termination of this Agreement.
10.1 E&L's Liability Insurance
10.1.1 E&L shall purchase and maintain such insurance
as will provide protection from the claims set forth below which
may arise out of or result from E&L's operations under this
Agreement, whether such operations be by E&L or by any
subcontractor or by anyone directly or indirectly employed by any
of them, or by anyone for whose acts any of them may be liable
and shall include B-W as an additional insured.
10.1.1.1 Claims under workers' compensation,
disability benefit and other similar employee benefit
acts which are applicable to the Work to be performed.
10.1.1.1 Claims for damage because of bodily
injury, or death of any person other than employees.
10.1.1.1 Claims for damages insured by usual
personal injury liability coverage which are sustained
(1) by any person as a result of an offense directly or
indirectly related to the employment of such person by
E&L or (2) by any other person.
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10.1.1.1 Claims for damages, other than to the
Work itself, because of injury to or destruction of
tangible property, including loss of use therefrom.
10.1.1.1 Claims for damages because of bodily
injury or death of any person or property damage
arising out of the ownership, maintenance or use of any
motor vehicle.
10.1.1 In addition, E&L's Comprehensive General
Liability Insurance shall include premises operations (including
explosion, collapse and underground coverage), elevators,
independent contractors, completed operations, and blanket
contractual liability on all written contracts, all including
broad form property damage coverage.
10.1.1 E&L's Comprehensive General and Automobile
Liability Insurance shall be written for not less than limits of
liability as follows:
a. Workmen's Compensation - Statutory
b. Comprehensive General Liability
1. Bodily Injury $5,000,000. - Each Occurrence
$5,000,000. - Aggregate
2. Property Damage $5,000,000. - Each Occurrence
$5,000,000. - Aggregate
c. Comprehensive Automobile Liability
1. Bodily Injury $5,000,000. - Each Person
$5,000,000. - Each Occurrence
2. Property Damage $500,000. - Each Occurrence
10.1.1 Insurance may be arranged under a single policy
for the full limits required or by a combination of underlying
policies with the balance provided by an Excess or Umbrella
Liability policy.
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10.1.1 The foregoing policies shall contain a
provision that coverages afforded under the policies will not be
modified or canceled or not renewed until at least thirty days'
prior written notice has been given to B-W. Certificates of
Insurance showing such coverages to be in force shall be filed
with B-W prior to commencement of the Work. E&L will be
responsible for any deductibles or co insurance penalties or
provisions under E&L's Comprehensive General and Automobile
Liability Insurance and any other insurance required in this
paragraph.
10.1 Insurance to Protect Project (Builder's All Risk
Insurance)
10.1.1 E&L shall purchase and maintain in
force Builder's All Risk insurance upon the entire Project for
the full cost of replacement at the time of any loss. This
insurance shall include B-W and E&L as named insureds and shall
insure against loss from the perils of Fire and Extended
Coverage, and shall include "All Risk" insurance for physical
loss or damage including, without duplication of coverage, at
least theft, vandalism, malicious mischief, transit, collapse,
flood, earthquake, testing, and damage resulting from faulty
workmanship, defective material or error or omission or
deficiency in design or specifications (excluding the cost of
making good faulty workmanship, defective materials or error or
omission or deficiency in design or specifications). E&L will
increase limits of coverage, if necessary, to reflect estimated
replacement cost.
10.1 Property Insurance Loss Adjustment
10.1.1 Any loss insured under Paragraph 10.3 shall be
adjusted with and made payable to B-W as trustee for the
insureds, as their interests may appear.
10.1.1 Upon the occurrence of an insured loss, monies
received will be deposited in a separate account and the
trustee shall make distribution in accordance with the agreement
of the parties in interest.
10.1 Waiver of Subrogation
10.1.1 B-W and E&L waive all rights against each
other, the subcontractors and subsubcontractors for damages
caused by perils covered by insurance provided under Paragraph
10.3, to the extent that the limits of such insurance are
adequate to cover such damages. E&L shall require similar
waivers from all subcontractors and subsubcontractors.
10.1.1 If the policy of insurance referred to in
Paragraph 10.3 requires an endorsement to provide for continued
coverage
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where there is a waiver of subrogation, E&L and B-W will cause
them to be so endorsed.
10.1 Professional Liability Insurance
10.1.1 E&L shall require any architect providing
services hereunder to carry and maintain, during the continuance
of the Contract and for a period of three (3) years following the
Completion of the Work, professional errors and omissions
insurance with respect to subcontracted work. Professional
errors and omissions insurance shall be endorsed to provide
contractual liability coverage. Such insurance for each
professional subcontractor shall be in an amount not less than
Five Million Dollars ($5,000,000) single claims and aggregate
limit of liability. E&L shall submit to B-W certificates
evidencing such insurance coverage. Such insurance policies
shall provide that B-W will be given at least thirty (30) days
notice prior to cancellation or nonrenewal of the policy.
ARTICLE 11
Termination of the Agreement and B-W's Right
to Perform E&L's Obligations
10.1 Termination by E&L. If the Project is stopped for a
period of ninety (90) days under an order of any court or other public
authority having jurisdiction, or as a result of an act of government, such as
a declaration of a national emergency making materials unavailable, through no
act or fault of E&L or if the Project should be stopped for a period of
fifteen (15) days by E&L for B-W's failure to make payments required by this
Agreement, then E&L may, upon seven (7) days' written notice to B-W, terminate
this Agreement and recover from B-W, payment for all Work executed and for any
proven loss sustained upon any materials, equipment, tools, construction
equipment and machinery. Except as expressly provided above, E&L shall not be
entitled to receive any further payment of any amount under or in respect of
the Contract.
11.1 Termination by B-W for Cause
11.1.1 If E&L is adjudged a bankrupt, or if E&L makes a
general assignment for the benefit of its creditors, or if a
receiver is appointed on account of its insolvency, or if E&L
refuses or fails, except in cases for which extension of time is
provided, to supply enough properly skilled workmen or proper
materials, or if E&L fails to make proper payment to
subcontractors or for materials or labor, or disregards law,
ordinances, rules, regulations or orders of any public authority
having jurisdiction, or otherwise is guilty of a violation of a
provision of this Agreement, then B-W may, without prejudice to
any right or remedy and after giving E&L and its surety, if any,
thirty (30) days' written notice, if
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during which period E&L fails to cure the violation or, if such
default cannot be cured within thirty (30) days, begins and
diligently pursues the cure thereof, terminate this Agreement and
take possession of the site and of all materials, equipment,
tools, construction equipment and machinery thereon owned by E&L
and may finish the Work by whatever reasonable method B-W may
deem expedient. In such case, E&L shall not be entitled to
receive any further payment until the Work is finished nor shall
E&L be relieved from its obligations assumed under this
Agreement.
11.1.1 If the unpaid balance of the Lump Sum
Price (as the same has been expressly adjusted by Change Order)
exceeds the costs of finishing the Work, less Tenant Build Out,
and all losses, damages (including incidental and consequential
damages), costs and expenses incurred by B-W in connection with
finishing such Work or arising as a result of E&L's breach of its
obligations, such excess shall be paid to E&L. If such costs,
losses, damages, costs and expenses exceed the unpaid balance of
the Lump Sum Price, E&L shall pay the difference to B-W.
ARTICLE 12
Assignment
Neither B-W nor E&L shall assign its interest in this Agreement
without written consent of the other.
ARTICLE 13
Governing Law
The rights and obligations of the parties under this Agreement
are subject to the laws of the State of Indiana. This Agreement shall be
construed and interpreted under the laws of Indiana.
ARTICLE 14
Claims and Disputes
In all claims, controversies or disputes arising out of or
relating to this Agreement, or any breach thereof, E&L and B-W agree to the
consolidation of all parties necessary to the resolution of such claims,
controversies or disputes, provided that the inability to obtain jurisdiction
over other parties shall not bar an action between B-W and E&L from proceeding.
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ARTICLE 15
Entire Agreement
This Agreement constitutes the entire agreement between the
parties. All prior negotiations, representations and agreements with respect
thereto not incorporated in such Agreement are hereby canceled.
ARTICLE 16
Severability
In the event any provision of this Agreement shall be
determined to be void, unlawful or otherwise unenforceable, such provision
shall be deemed severable from the remainder of this Agreement which shall
continue to be in full force and effect without such provision.
ARTICLE 17
No Lien Provision
11.1 This is a No-Lien Contract. No liens shall attach to
the Real Estate or any building, structure or improvement to such Real Estate.
Any attempted lien by E&L or any subcontractor, mechanic, journeyman, laborer,
person performing labor upon or furnishing materials or machinery for such real
estate shall not be valid. Simultaneously with the execution of this Agreement
and as part of this Agreement, the parties shall execute a No-Lien Agreement, a
duplicate original of which is attached hereto as Exhibit G and which is
incorporated herein by reference and made a part hereof. Within five (5) days
of the execution of this Agreement, the parties shall file the No-Lien
Agreement in the Office of the Recorder of Xxxxxx County, Indiana. A copy of
this Agreement shall be kept at the principal office of E&L which is located at
00000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, and shall be made available
at reasonable times for inspection upon the request of any subcontractor,
mechanic, journeyman, laborer or person performing labor or furnishing
materials or machinery for the Real Estate or improvements thereon.
17.1 E&L, on its own behalf and, to the extent permitted by
law, on behalf of all of its subcontractors and suppliers of material and
labor, hereby expressly waives the benefits of the Mechanics Lien Laws of the
State of Indiana. Compliance with this paragraph is a condition of payment by
B-W to E&L. Payments made by B-W without strict compliance with the terms of
this paragraph shall not be construed as a waiver by B-W of the right to insist
upon such compliance as a condition of later payments. E&L shall indemnify
and protect B-W from any and all costs incurred by B-W, including attorneys'
and paralegals' fees, resulting from the filing of any lien by E&L, its
subcontractors or suppliers. Such indemnification obligation shall survive the
expiration or early termination of this Agreement.
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ARTICLE 18
Notices
All notices to be given shall be in writing and shall be sent
by United States Certified or Registered Mail or by facsimile. Notices shall
be deemed received on the actual date received. Notice given in any other
manner shall be effective only if and when received and acknowledged by the
party to be notified. All notices to be given to the parties hereto shall be
sent to:
B-W: Bindley Western Industries, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxxx
Fax No.: 000-0000
E&L: Xxxxx & Lauth Real Estate Services,
Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax No.: 000-0000
Each party shall have the right to change its respective
address and specify as its address any other address by giving fifteen (15)
days written notice to the other party.
ARTICLE 19
Amendments
Any amendment or modification of this Agreement shall be in
writing and signed by all of the parties hereto.
ARTICLE 20
Miscellaneous
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17.1 B-W shall have the right to inspect the Work and
conduct such tests of the Work and all components thereof and to review,
pursuant to 3.2.14, records of E&L as it considers appropriate to verify that
(i) the Work has been completed as indicated in any request for payment, (ii)
such Work has been completed in a good and workmanlike manner, free of defects
and in accordance with the Drawings and Specifications and all warranties
therein and in this Agreement, and (iii) all required payments to the
subcontractors and suppliers have been made. If B-W determines that the Work
has not been so competed or that required payments to subcontractors and
suppliers have not been made, then B-W may withhold from payments to E&L the
amount necessary to protect B-W from loss. When the cause for any such
withholding is removed, payment shall be made of the amount withheld for such
cause. This Paragraph 20.1 does not impose any duty on B-W to inspect or
observe the Work, nor shall any inspection, observation or payment relieve E&L
of any of its obligations under this Agreement. If the tests conducted
pursuant to this Paragraph 20.1 reveal a material defect or nonconformance in
the Work, the costs of such tests shall be paid by E&L; otherwise, the costs of
the tests shall be borne by B-W.
20.1 If E&L defaults or neglects to carry out the Work in
accordance with this Agreement and fails within seven (7) days after written
notice from B-W to commence and continue correction of such default or neglect
with diligence and promptness, B-W may, after seven (7) days following receipt
by E&L of an additional written notice and without prejudice to any other
remedy B-W may have, make good such deficiencies. In such case an appropriate
Change Order shall be issued deducting from the payments then or thereafter due
E&L all costs incurred by B-W in correcting such deficiencies. If the payment
then or thereafter due E&L are not sufficient to cover such amount, E&L shall
pay the difference to B-W.
20.1 No failure on the part of B-W or E&L to insist upon the
strict performance of any term or condition of this Agreement or to exercise
any right, remedy, power or privilege provided for therein or afforded by law
shall operate as a waiver or release thereof, nor shall any single or partial
exercise of any such right, remedy, power or privilege by B-W or E&L preclude
any other or further exercise thereof.
20.1 B-W and E&L or an affiliate of E&L, shall enter into a
management agreement, in a form to be agreed to by B-W and E&L, pursuant to
which E&L shall be the property manager of the Project for a period of three
(3) years from the date of Substantial Completion of the Tenant Build Out of
that portion of the building to be occupied by B-W. As compensation for its
services thereunder, E&L shall be paid a fee equal to the greater of fifty
cents ($0.50) per square foot for the space in the building that is occupied
divided by twelve (12) or $3,000.00 per month.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties as of the day and year first above written.
WITNESS:
BINDLEY WESTERN INDUSTRIES, INC.
______________________________
______________________________
By: ______________________________
Printed: Xxxxxxx X. XxXxxxxxx
Its: Executive Vice President
and General Counsel
WITNESS:
XXXXX & XXXXX
REAL ESTATE SERVICES, INC.
______________________________
______________________________
By: ______________________________
Printed: Xxxxxxx X. Xxxxxx
Its: President
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EXHIBIT D
SCHEDULE OF LEASING COMMISSIONS
Leasing commissions shall be due and payable upon the execution
of a third party (other than B-W) lease and shall be calculated as follows:
6% of the total lease value of the first five years of
the lease term.
3% of the total lease value of second five years (or
portion thereof) of the lease term.
The term "Total Lease Value" shall mean the sum total
of rentals to be paid during the term of the lease,
excluding operating costs and real estate taxes.
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